Essilor International SAS v. J.P. Morgan Chase Bank, N.A.

Background

Plaintiff Essilor Mfg. (Thailand) Co., Ltd. moved to strike the expert report of Gene L. Deetz, which J.P. Morgan Chase Bank, N.A. offered on damages. Essilor argued that the report was an untimely opening report because J.P. Morgan served it on the deadline for rebuttal reports rather than the deadline for opening reports. Essilor had served two expert reports concerning liability but had not served a damages report.

The scheduling order required the parties to identify testifying experts and exchange opening reports by June 28, 2024; identify rebuttal experts and exchange rebuttal reports by July 30, 2024; and exchange reply reports by August 29, 2024. Expert discovery was due to be completed by September 27, 2024, and summary-judgment motions were due by October 25, 2024.

J.P. Morgan argued that the Deetz Report was timely because it responded to assumptions in the report of Essilor’s liability expert, Richard M. Fraher. It also argued that it understood it would not need to submit a damages report until after Essilor submitted one, because Essilor had the burden of proving damages. The parties disagreed about whether exclusion of the report was appropriate if it was late.

Court’s Analysis

The court said it did not need to decide whether J.P. Morgan’s service of the Deetz Report complied with the scheduling order. Excluding an expert’s testimony is a severe remedy that courts generally disfavor. Under the factors identified in Softel, courts consider the explanation for the disclosure failure, the importance of the testimony, the prejudice to the opposing party, and whether a continuance is possible. Courts must also consider less severe responses before excluding the testimony.

The court found that these factors weighed against exclusion. J.P. Morgan had a reasonable explanation: it expected Essilor to submit a damages report and believed its own report would be due as a rebuttal report. The Deetz Report also responded, at least in part, to assumptions underlying Fraher’s analysis. The court considered the report important because it addressed the remedy if Essilor proved liability. It rejected Essilor’s argument that the damages calculation was not complex or that a nonexpert witness could easily provide the analysis. Any prejudice to Essilor could be reduced by allowing Essilor to depose Deetz. Because no trial date had been set, a short continuance would not interfere with the case’s ultimate resolution.

The court stated that it would consider a letter motion from Essilor seeking to use a damages rebuttal expert and further extend discovery, provided the parties first met and conferred and the motion was filed by August 30, 2024.

Rulings

The motion at Dkt. No. 167 to strike the Deetz Report was denied.

The motions at Dkt. Nos. 166 and 172 to file the Deetz Report in redacted form were denied to the extent they sought to redact the information in paragraph 14 of Dkt. No. 173-1 and were otherwise granted with respect to the Deetz Report. J.P. Morgan was directed to file a redacted version consistent with the order by August 26, 2024.

The motions at Dkt. Nos. 166 and 172 were denied without prejudice with respect to the reports of Richard M. Fraher and Terri Sands. The Clerk was directed to keep the related documents under seal so J.P. Morgan could file a renewed sealing motion under the standards governing public access to court records. If no renewed motion was filed by August 26, 2024, the court stated that it would direct that two of the documents be unsealed. The court also noted that the presumption of public access could become stronger if the reports were later used with summary judgment or at trial.

The Clerk was directed to close the motions at Dkt. Nos. 166, 167, 169, and 172. The order was signed by Judge Lewis J. Liman on August 22, 2024.